The proposal, Carlson said, is “antithetical to the purpose of the” Flores settlement, which restricts the amount of time minors can be held in detention and sets basic standards for their care while in government custody. The government’s proposed rule is framed as a modification of the settlement, but Carlson said the actual changes it proposes would undermine those goals.

“The proposed regulations would essentially authorize the indefinite detention of children and codify the practice of family separation,” Carlson wrote.

The proposal, in which public comments closed Nov. 6, is an overdue attempt to implement the settlement in Flores v. Reno, as it was called at the time. The terms of the settlement say it will no longer be effective after the government passes regulations implementing it. The government has never passed those regulations, so the settlement has remained in force for 21 years.

However, Carlson’s letter said, this attempt to implement the settlement would actually undermine it. The ABA’s attached comments note that some of the proposals contradict the mandates laid out by the settlement, for example, by increasing the length of time minors are allowed to be in custody and permitting the government to hold minors in facilities that are not state-licensed to care for children. The proposal also permits an extremely broad definition of an “emergency” that would suspend compliance with the settlement and defines “family unit” narrowly enough to permit the federal government to take children from nonparent relatives.

Carlson also noted that the commentary to the proposed regulations implies throughout that the Flores settlement, and related court decisions, have forced the government to either separate families or detain them together. He noted that releasing families with monitoring is also an available option—and that those are unacceptable ways for the government to behave.

“The use of family detention and family separation have not deterred desperate parents from seeking protection for their children (nor is deterrence a permissible goal) and have proven incredibly expensive,” the letter said. “There are cost-effective and humane alternatives to detention programs.”

Carson’s letter echoed another letter submitted Tuesday on the regulations, by a group of 18 state attorneys general. That letter also noted that the proposal contravenes the settlement it purports to implement and could harm children by detaining them indefinitely. The regulations.gov website shows 66,489 comments were made to the proposed regulations before the commenting period closed Tuesday.

The Flores settlement came in a lawsuit first filed in the 1980s, known at that time as Flores v. Meese. Lead attorney Carlos Holguín of the Center for Human Rights and Constitutional Law in Los Angeles told the ABA Journal in 2016 that he was disturbed to realize, on his first visit to a detention center in the mid-1980s, that minors were being mixed with adults of both genders with little concern for their safety. He pursued the lawsuit for more than a decade before the settlement.

Flores has been reopened multiple times to address what the plaintiffs see as violations of the settlement by the federal government. Now styled Flores v. Sessions, it is currently pending in the U.S. District Court for the Central District of California, where Judge Dolly Gee has recently appointed a special master to ensure that the federal government remedies its noncompliance with the settlement. Among the things currently at issue are allegations that the federal government is administering powerful psychiatric medications to minors without parental consent. Gee denied a motion for reconsideration of that order on Monday.